In my Religion and the Constitution class, we discussed the defense of marriage and the implications of Lawrence v. Texas. Now, particulary, our teacher brought in a transcript of Howard Dean's appearence on Hardball at Harvard, where Mathews demanded Dean explain the difference between marriage and civil union. Legally, Dean admitted, there was no difference. Why then, Mathews asked, was there such a huge issue over the name? Dean answered, it's because the institution of marriage is sacred to a lot of religous people in this country. People's religous views are valid and important. However, our teacher pointed out the famous constutional case of Lemon v. Kurtzman that is still the common law today. For any statute to be constitionally valid under the 1st amendment, it must satisfy a three pronged test: 1. There must be a secular purpose. 2. The law cannot have the primary effect of advancing religion. 3. There cannot be excessive entanglement of government and religion. If Civil Unions are valid, then the argument can be made that barring the constitutional amendment, marriage is invalid. The reason? The first two prongs of the lemon test. If the only reason for separating marriage and civil unions and marriage is based on the idea that there is a religously grounded belief that marriage is between a man and a women, marriage being separate from civil unions does not pass the lemon test. Furthermore, if we are creating two separate institutions for the same legal purpose, we run into Brown problems, the separate but equal prohibition doctrines. The students in the class had a variety of different beliefs regarding marriage. Some felt that allowing marriage constitutes a free excercise violation, infringing on religous freedoms by forcing marriage to include gays againts religous doctrine. But typically, accomodation cases have involved situations where a religous right of a person was being denied, not that the granting of a right to an unreltaed person infringed on that right. Part of the problem was that it was nearly impossible for people to make convincing arguments against gay marriage without employing religous morality. Therefore, the professor put forth this notion that was surpringly the compromise that even the conservatives in the class signed on to: Abolish government marriage. The only recognition the government endorses is civil unions. The sacred institution of marriage can therefore ONLY be obtained through the religous institutions. Preserve marriage as solely a sacred religous institution. This satisfies the third prong of the lemon test by removing the entanglement of government and religion. This idea actually seems to make a lot of sense to me. Those people that want marriage to be preserved would get their wish. Those that want equal rights for all citizens would get their wish. The constitutional issue would be nullified by the government removing itself from the institution of marriage, leaving it to be a solely sacred religous institution. What do you think? I was weary at the idea because I thought conservatives would never go for it, but those ones that spoke up in my class agreed, and I was out having a drink tonight and I was explaining this idea to my friend, and the bartender stepped in and said "hey, I'm a conservative, and I actually agree with that idea." Thus, marriage is preserved, and everyone is given equal rights. KK EDIT: Title change, by request. KK EDIT 2: Locking by request.